“Justice” and Security: Inquests are gone but so is judicial discretion

29 May 2012

Today Liberty warned that Government plans for Secret Justice are even worse than first imagined – and that the removal of Inquests has given cover for the removal of judicial discretion over Public Interest Immunity (PII).

The ironically-titled Justice and Security Bill, published today, proposes to introduce the highly-flawed system of Closed Material Procedures (CMP) and Special Advocates into the ordinary civil law. As a result, the Government would effectively be able to rely on secret evidence to defend serious allegations in any case where it feels disclosure might harm “the interests of national security”. The claimant would not be shown such material or even be allowed in the Court – neither would their lawyer, the public or the press. Only the judge, the Government itself and the Government-appointed Special Advocate would be present.

Deputy Prime Minister Nick Clegg is claiming the Bill as a victory after plans to include Inquests in the legislation were shelved. But in reality – with the exception of the removal of Inquests – the Bill is worse than first imagined. It seeks to remove the current system of hearing sensitive material – via the use of PII – altogether and replace it entirely with controversial CMP.

PII allows certain sensitive material to be excluded from a case but, unlike CMP, does not allow the Government to rely on it whilst shutting the ordinary citizen out of court.

Under the proposals, the Secretary of State would be able to apply to the Court for a declaration that CMP should be allowed. The Court would then be required to grant the application in any case where it considered that the Secretary of State would be required to make a disclosure damaging to the interests of national security over the course of the proceedings. The Court is specifically ordered to disregard the possibility of protecting sensitive evidence under PII in doing so – making the judicial trigger a complete fig leaf.

The plans could potentially cover civil actions arising from complicity in torture, police negligence and compensation claims resulting from friendly fire – indeed, any civil claim capable of embarrassing the authorities. Incredibly the Government claims the Bill is an improvement on the original Justice and Security Green Paper – and that it will actually boost scrutiny and accountability of the Security Services.

Shami Chakrabarti, Director of Liberty, said: "Not as spun but as published, this Bill would end equal open civil justice, putting ministers and securocrats above the law.

“Judges are made fig-leaves, robbed of their current Public Interest Immunity discretion and so effectively required to comply with Ministers’ desires for secrecy.

“We knew the Bill would create a contest with one team permanently off the pitch. Now the farce is complete with a gun to the referee's head."

The Bill also ousts the ability of courts to hear applications like that brought by Binyam Mohamed which led to information about the UK’s involvement in CIA rendition coming to light.